Date of Filling     :  11 02.2011.

                                                                                         Date of Disposal :  08.03.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT: THIRU. S.  PANDIAN, B.Sc., L.L.M.,            …    PRESIDENT

                  TMT.  S.  SUJATHA, B.Sc.,                         …    MEMBER - I

C.C. No.08/2011

(Tuesday the 08^th March 2016)

J.  Venkatesh Perumal,

C/o. P.V. Pattu,

No.1/10, Mela Mettu Street,

Melapadappai,

Chennai - 601 301.                                                                   … Complainant.

                                                          / Versus /

1. ICICI Bank Ltd.,

    Kumara Park Branch,

    Represented by its Manager,

    No.2, Kaushal Emerald Kumara Park,

    Opposite to Gandhi Bhavan,

    Bangalore - 560 001.

2. ICICI Bank Zonal Office,

   Credit Card Department,

   Represented by its Manager,

   Plot No.24, Block No.1,

   Arihant Inside, 2^nd Floor,

   Ambattur Industrial Estate,

   Chennai - 600 053.

3. The Manager,

    ICICI Bank Ltd.,

    Represented by its Regional Manager,

    Regional Office,

    No.1, Cenatoph Road,

    Chennai - 600 018.                                                   … Opposite parties.         

This complaint is coming upon before us finally on 23.02.2016 in the presence of M/s. T.R. Sethuraman, Counsel for the complainant, Mrs. A. Latha Maheswari, Counsel for the 1 to 3 opposite parties, upon hearing arguments of both sides and  having  perused the documents and evidences and written arguments of both sides, this Forum delivered the following,

                                                ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties seeking direction to recredit a sum of Rs.21,970/- in the Savings Bank Account No.625301534431, to pay a sum of Rs.8,00,000/- as compensation for mental agony and to pay Rs.10,000/- towards cost.

1. The brief averments of the complaint is as follows:-

The complainant is having savings bank account No.625301534431 with the 1^st opposite party.  On the basis of the said account, the 2^nd opposite party issued a credit card to the complainant, bearing a number No.5239511064951005.  The 3^rd opposite party is the Supervising Authority over the 1^st & 2^nd opposite parties.  Hence all the opposite parties are bound to provide proper service to the complainant under the relevant provisions of law.

2.       The complainant made purchases for Rs.32,200/- on 04.02.2008 by using the said credit card and he repaid the same to the 2^nd opposite party to the tune of Rs.35,100/- on various dates as stated below:

After repayment of the dues payable under the said Credit Card, the Statement of Account furnished by the 2^nd opposite party on 15.05.2008 which clearly states there was ‘No Balance’ in original amount of Rs.32,200/- dated 06.05.2008.  The complainant has not been using the said credit card from 07.05.2008 onwards for any purpose whatsoever.  That being so, to his shock and dismay he received an E-Mail dated 02.06.2008 from the customer care of the 1^st opposite party on the subject of reminder regarding the due date for payment INTER ALIA stating that

Mr. J. Perumal Venkatesh,

“Payment on your ICICI Bank Credit Card No.5236 xxxx xxxx 1005 is due on 06.06.2008. Your may choose to pay the total bill amount of Rs.14,519.47 or the minimum amount of Rs.12,320/-.  Please ignore this message in case your payment is already made.”

3.       He had ignored the said e-mail since the due was already cleared.   But he had been receiving the same kind of E-Mails subsequently also from the same 1^st opposite party on 31.07.2008 for Rs.6,740/- similar to the earlier E-mail dated 02.06.2008 for Rs.6,740/- as over due on 03.08.2008.  When the complainant contacted the 1^st opposite party’s officials regarding this E-Mail the assured that his credit card would be terminated (meaning that it would be cancelled).  When the complainant later checked up as to whether his credit card has been terminated, he got a reply “pick the card” meaning that the card was not functioning.  Hence, it was presumed that the complainant’s credit card had been terminated (cancelled).

4.       When the complainant used his ATM card on 20.10.2009 to draw an amount of Rs.20,000/- as he had a sum of Rs.22,030/- in his bank account.  But to his shock and dismay the ATM machine showed as Declined obviously meaning that the balance available would not be sufficient.  On account of this, the complainant was put to severe mental agony & inconvenience.  When the complainant verified his statement of accounts for his savings account for the period between 01.10.2009 to 20.10.2009, it was found that without the complainant’s knowledge and consent, a sum of Rs.21,970/- has been drawn from his S.B. account on 15.10.2009 and transferred to his aforesaid credit card account.  When questioned by the complainant, the officials of the 1^st & 2^nd opposite parties replied him stating that since the complainant did not pay the dues to his credit card account, the aforesaid debit of Rs.21,970/- only was made.

5.       This is a clear case of deficiency of service under law, on account of which the complainant suffered immense mental agony and inconvenience.  So, even assuming only for the sake of argument, the  reply of the opposite parties officials that since the complainant did not pay for the credit and they debited the amount from his saving account is true, they could not and should not have debited it long before the due date, i.e., 02.11.2009.   Therefore, the complainant issued legal notice to the above mentioned 1^st & 2^nd opposite parties on 21.04.2010.  After having received the said notice, the above said opposite parties neither complied with the demands, made therein, nor replied.   Hence the complaint.

6.         The contention of the written version of the 1 to 3 opposite parties is as  briefly as follows:-

The opposite party denies the allegation made in the complaint except those that are admitted herein.  It is true that the complainant has given credit card facility.  The credit limit is Rs.62,000/- on 04.02.2008 the complaint has used the card for Rs.32,200/- and the convention usage amount is Rs.32,200/- repayable in 3 equal monthly installments.  The EMI amount is Rs.10,733.33 and the 1^st EMI started from 6^th March 2008.   The complainant also authorized Lombard insurance amount Rs.12,235/- and convention insurance amount 24 EMI equal months installment.  The 1^st EMI started from 8^th Feb 2008 and EMI amount Rs.56,587/-.  The complainant has repaid the EMI for the usage amount Rs.32,200/- only.   Even as per his own statement given in para 6 the complainant has not repaid insurance EMI amount.  Hence, late payment and other charges accumulate.  The opposite parties have a lien over the S.B. Account of the complainant.  This was intimated to him above the date 09.09.2009.  Then only the bank has debited Rs.21,970.27 on 15.10.2009.  The complainant has not disclosed all the above facts and make hue and cry for the debiting of sum of Rs.21,970.27 which is the Lombard Insurance amount with late payment and other charges so there is no defective service on the part of the opposite parties.  There is no illegality since there is lien, a banker lien for that matter.  The alleged mental agony and inconvenience caused are all false and baseless.  The alleged due date given as 02.11.2008 is wrong.  As per law even there is default for one month, the entire amount can be called for by the bank from the customers.

          7.       It is not correct to say that the opposite parties have not been very transparent in disclosing the statement.  This averments is only for purpose of complaint.  The claim of Rs.8,00,000/- for mental agony, inconvenience and cost is not at all proved.   Hence this complaint is liable to be dismissed.

8.         In order to prove the case on the side of the complainant, the proof affidavit submitted for his evidence and Exhibit A1 to A9 were marked.  While so, on the side of the 1 to 3 opposite parties, the proof affidavit is filed  and no documents filed on the side of the opposite parties.

9.         At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10.     Written arguments filed and oral arguments also adduced by both sides.

 11.       Point  no.1:-

  In order to prove the deficiency in service, the complainant stated in his proof affidavit that even though he had repaid the amount due in his credit card account for purchase of Rs.32,200/- on 04.02.2008 on various dates viz 13.02.2008 of Rs.1,500/-, 27.03.2008 of Rs.1,000/-, 08.04.2008 of Rs.11,000/-, 07.05.2008 of Rs.10,800/- and 03.06.2008 of Rs.10,800/- in total Rs.35,100/- and the same was confirmed through Ex.A6 and Ex.A7.  It is clearly mentioned in Ex.A7 that though there was no balance in the original amount of Rs.32,200/- dated 16.05.2008, but the opposite party sent an E-mail dated 02.06.2008 which is marked as Ex.A1, through the customer care that the complainant is still having due of Rs.14,519.47.  It is further narrated by the complainant that on  verification of his statement of accounts of his savings account for the period between 01.10.2009 and 20.10.2009, in which it was found that without the consent and knowledge of the complainant the sum of Rs.21,970/- has been drawn from his account on 15.10.2009 for which Ex.A4 is marked and when the complainant used this ATM card on 20.10.2009 to draw the amount of Rs.20,000/- but to a  shock and dismay the ATM machine showed as ‘Decline’ obviously that the balance available would not be sufficient which caused severe mental agony and inconvenience due to the deficiency in service on the party of the opposite party and therefore, Ex.A8 and Ex.A9 legal notices were sent to the opposite parties and the same were acknowledged by the opposite parties.  Even then, the opposite parties have failed to comply the demand of the complainant.

12.        While so, on the side of the opposite parties the only contention made by the opposite parties that the complainant also authorized Lombard Insurance amount of Rs.12,235/- and convention Insurance amount 24 equal months instalments which is started from 08.02.2008 and the EMI amount Rs.56,587/- and complainant repaid the EMI for usage amount of Rs.32,200/- only and therefore, the bank has debited Rs.27,970.27 on 15.10.2009 in which the opposite parties have lien over the savings  account of the  complainant  and therefore, there is no illegality and deficiency in service and as well as allegations made in the complaint are of false and baseless.

13.        At this juncture, on careful perusal of the rival submissions put forth on either side it is an admitted fact that the complainant was issued credit card account of the  opposite parties’ bank and the same was used by the complainant for purchase of Rs.32,200/- on 04.02.2008.  Further, the repayment of Rs.35,100/- on different dates  through Ex.A6 and Ex.A7 is also not a disputed one.    At the outset, the only contention raised by the opposite party is that the complainant has not repaid the EMI Insurance amount  which  was obtained from Lombard Insurance and therefore the opposite party bank has debited Rs.21,970.27 on 15.10.2009 from the Savings Bank account of the complainant, since the opposite parties have a lien over the savings bank account of the complainant and the same was intimated to the complainant even on 09.09.2009.  Therefore, there is no illegality and no way amount for any deficiency in service. 

14.        At this point of time, it is objected by the complainant that there is no such lien with the opposite party and also no consent obtained from him by the opposite party to that effect.  Therefore, it is the duty of the opposite party to prove that there is a lien as stated by the opposite party in debiting the above said EMI due for ICICI Lombard GIC Limited.  In fact, there is no such document produced on the side of the opposite party, even then sufficient opportunity was provided to the opposite party.  Similarly, though it was stated in the written version that the complainant was intimated regarding the above said lien over the Savings bank account of the complainant, but for such debit of the EMI due for Lombard GIC Limited, no such document produced in order to prove the said intimation.  Moreover, there is no relevant evidence to show that any consent obtained from the complainant for the debit of the said amount of Rs.21,970.27  towards the EMI due pending with Lombard GIC Limited.  Hence, when the opposite party has not fulfilled his burden of proof on the above said facts, it can be easily drawn an adverse inference against the opposite party and thereby presumed that there is no such lien as made by the opposite party in respect of adopting the EMI due for Lombard GIC Limited as pointed out by the learned counsel for the complainant. 

15.        From the foregoing among other facts and circumstances, this Forum has concluded that there is a deficiency in service on the part of the opposite parties as alleged in the complaint and thereby causing mental agony to the complainant and the same has been proved by means of consistent and acceptable evidence which can be easily thrown out.   Thus point no.1 is answered accordingly.

16.       Point no.2:-

In view of the decision arrived in point no.1, the complainant is entitled for recredit of the sum of Rs.21,970/- to his savings bank account with reasonable compensation and cost.  Thus point no.2 is answered accordingly.

17.     In the result, this complaint is allowed in part.  Accordingly, the 1 to 3 opposite parties are jointly or severally directed to recredit  a sum of Rs.21,970/- in the Savings Bank Account  No.625301534431 in favour of the complainant with interest at 9% p.a. from the date of filing of this complaint (11.02.2011) to the date of this order and to pay a sum of Rs.10,000/- towards compensation for mental agony and  hardship due to the deficiency of service on the part of the 1 to 3 opposite parties and to pay Rs.5,000/- towards cost of litigation of this complaint.

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 08^th March 2016.

Sd/-***                                                                                                            Sd/-***

MEMBER - I                                                                                                  PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite parties:-

Nil.

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MEMBER - I                                                                                                  PRESIDENT